Approval and Promulgation of Implementation Plans; State of Missouri

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region VII Docket No. MO-057-1057a; FRL-6197-1]

Approval and Promulgation of Implementation Plans; State of

Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing a

revision to the State Implementation Plan (SIP) which incorporates new

Missouri rule 10 CSR 10-6.330 entitled ``Restriction of Emissions from

Batch-Type Charcoal Kilns.'' Missouri's rule requires a

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substantial reduction of emissions of volatile organic compounds (VOC)

(some of which are toxic), particulate matter (PM10), and

carbon monoxide (CO) from charcoal-producing ovens commonly called

charcoal kilns. The implementation of this rule will result in a

significant improvement in air quality, especially in central and

southern Missouri where most of these facilities are located.

DATES: This direct final rule is effective on February 8, 1999 without

further notice, unless the EPA receives adverse comment by January 7,

1999. If adverse comment is received, the EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Joshua A. Tapp at

Environmental Protection Agency, Air Branch, 726 Minnesota Avenue,

Kansas City, Kansas 66101.

Copies of the state submittal are available at the following

addresses for inspection during normal business hours: Environmental

Protection Agency, Air Planning and Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101; and the Environmental Protection

Agency, Air and Radiation Docket and Information Center, Air Docket

(6102), 401 M Street, S.W., Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Joshua A. Tapp of the Environmental

Protection Agency at (913) 551-7606.

SUPPLEMENTARY INFORMATION:

Background

What is a SIP?

Section 110 of the Clean Air Act (CAA) requires states to develop

air pollution regulations and control strategies to ensure that state

air quality meets the National Ambient Air Quality Standards (NAAQS)

established by the EPA. These ambient standards are established under

section 109 of the CAA and they currently address six criteria

pollutants. These pollutants are: CO, nitrogen dioxide, ozone, lead,

PM10, and sulfur dioxide.

Each state must submit these regulations and control strategies to

EPA for approval and incorporation into the Federally enforceable SIP.

Currently, each state has a Federally approved SIP which protects

air quality, primarily by addressing air pollution at its point of

origin. These SIPs can be extensive, containing state regulations or

other enforceable documents and supporting information such as emission

inventories, monitoring networks, and modeling demonstrations.

What is the Federal approval process for a SIP?

In order for state regulations to be incorporated into the

Federally enforceable SIP, states must formally adopt the regulations

and control strategies consistent with state and Federal requirements.

This process generally includes a public notice, public hearing, public

comment period, and a formal adoption by a state-authorized rulemaking

body.

Once a state rule, regulation, or control strategy is adopted, the

state may submit the adopted provisions to the EPA and request that

these provisions be included in the Federally enforceable SIP. The EPA

must then decide on an appropriate Federal action, provide public

notice on this action, and seek additional public comment regarding

this action. If adverse comments are received, they must be addressed

prior to a final action by the EPA.

All state regulations and supporting information approved by the

EPA under section 110 of the CAA are incorporated into the Federally

approved SIP. Records of such SIP actions are maintained in the Code of

Federal Regulations (CFR) at Title 40, Part 52, entitled ``Approval and

Promulgation of Implementation Plans.'' The actual state regulations

which were approved are not reproduced in their entirety in the CFR but

are ``incorporated by reference,'' which means that the EPA has

approved a given state regulation with a specific effective date.

What does Federal approval of a state regulation mean to me?

Enforcement of the state regulation before and after it is

incorporated into the Federally approved SIP is primarily a state

function. However, once the regulation is Federally approved, the EPA

and the public may take enforcement action against violators of these

regulations if the state fails to do so.

What is being acted on in this document?

Missouri rule 10 CSR 10-6.330, entitled ``Restriction of Emissions

from Batch-Type Charcoal Kilns,'' applies throughout the state of

Missouri to batch-type charcoal kilns. The majority of these facilities

are located in south-central Missouri near the lumber mills which are

the primary provider of the waste wood materials commonly used to

produce charcoal.

Until recently, batch-type charcoal kilns have operated under

exemptions from Missouri visibility regulations (10 CSR 10-3.080) and

PM10 regulations (10 CSR 10-3.050). In 1991 and 1996, the

EPA and the Missouri Department of Natural Resources (MDNR) conducted

ambient air quality studies in response to citizen complaints regarding

air quality. Data from these studies have shown that this industry has

the potential to cause or contribute to violations of the NAAQS for

PM10.

In response to these data, MDNR and the charcoal industry worked

together to develop a plan which ensures maintenance of the NAAQS for

PM10, but which also concurrently addresses emissions of VOC

and CO.

This effort required an evaluation of best performing existing

control technologies, new control technologies, and the best available

work practices. Based on this review, MDNR determined that afterburners

were an acceptable control technology which were capable of reducing

emissions of PM10 by 98 percent, and CO and VOCs by 99

percent.

MDNR worked with the industry to convert this plan into an

enforceable regulation which embodied these requirements in the form of

emission limits. Monitoring, maintenance and operating work practices,

recordkeeping, and reporting requirements were also incorporated into

the rule to improve emission reductions and compliance demonstrations.

MDNR held a public hearing on this rule on February 3, 1998. No

negative comments were received. The Missouri Air Conservation

Commission adopted the rule on March 26, 1998, and it became effective

on July 30, 1998.

What action is being taken by the EPA?

MDNR submitted this rule for incorporation into the Federally

approved SIP on July 30, 1998.

The EPA has reviewed this submittal against all applicable

statutory, regulatory, and policy guidelines, and has determined that

this rule is consistent with all applicable requirements and will

result in a substantial improvement in air quality.

Because the industry participated in the development of this rule,

and because there was broad support for this rule during that state

administrative and public processes, the EPA views its approval of this

rule as non-controversial.

The EPA is, therefore, taking direct final action to approve this

rule as a revision to the Missouri SIP.

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The EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial submittal and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, the EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective February 8, 1999

without further notice unless the Agency receives adverse comments by

January 7, 1999.

If the EPA receives such comments, then the EPA will publish a

document withdrawing the final rule and informing the public that the

rule will not take effect. All public comments received will then be

addressed in a subsequent final rule based on the proposed rule. The

EPA will not institute a second comment period. Parties interested in

commenting should do so at this time. If no such comments are received,

the public is advised that this rule will be effective on February 8,

1999 and no further action will be taken on the proposed rule.

Administrative Requirements

A. Executive Order (E.O.) 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866, entitled ``Regulatory Planning and

Review.''

B. E.O. 12875

Under E.O. 12875, the EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal Government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or the EPA consults with those governments. If the EPA

complies by consulting, E.O. 12875 requires the EPA to provide to OMB a

description of the extent of the EPA's prior consultation with

representatives of affected state, local, and tribal governments; the

nature of their concerns; copies of any written communications from the

governments; and a statement supporting the need to issue the

regulation. In addition, E.O. 12875 requires the EPA to develop an

effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local, or tribal

governments. The rule does not impose any enforceable duties on these

entities. See Section F, ``Unfunded Mandates,'' listed below.

Accordingly, the requirements of section 1(a) of E.O. 12875 do not

apply to this rule.

C. E.O. 13084

Under E.O. 13084, the EPA may not issue a regulation that is not

required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

Government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or the EPA consults with

those governments. If the EPA complies by consulting, E.O. 13084

requires the EPA to provide to OMB, in a separately identified section

of the preamble to the rule, a description of the extent of the EPA's

prior consultation with representatives of affected tribal governments,

a summary of the nature of their concerns, and a statement supporting

the need to issue the regulation. In addition, E.O. 13084 requires the

EPA to develop an effective process permitting elected officials and

other representatives of Indian tribal governments ``to provide

meaningful and timely input in the development of regulatory policies

on matters that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. No tribes operated or own any

Missouri charcoal kilns, nor are any tribal lands located near these

facilities. Accordingly, the requirements of section 3(b) of E.O. 13084

do not apply to this rule.

D. E.O. 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that the

EPA has reason to believe may have a disproportionate effect on

children. If the regulatory action meets both criteria, the Agency must

evaluate the environmental health or safety effects of the planned rule

on children, and explain why the planned regulation is preferable to

other potentially effective and reasonably feasible alternatives

considered by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks

that would have a disproportionate effect on children.

E. Regulatory Flexibility Act (RFA)

The RFA generally requires an agency to conduct a regulatory

flexibility analysis of any rule subject to notice and comment

rulemaking requirements unless the agency certifies that the rule will

not have a significant economic impact on a substantial number of small

entities. Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. This final rule will

not have a significant impact on a substantial number of small entities

because SIP approvals under section 110 and subchapter I, part D of the

CAA do not create any new requirements but simply approve requirements

that the state is already imposing. Therefore, because the Federal SIP

approval does not create any new requirements, I certify that this

action will not have a significant economic impact on a substantial

number of small entities. Moreover, due to the nature of the Federal-

state relationship under the CAA, preparation of flexibility analysis

would constitute Federal inquiry into the economic reasonableness of

state action. The CAA forbids the EPA to base its actions concerning

SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246,

255-66 (1976); 42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to state, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, the

EPA must select the most cost-effective and least burdensome

alternative that achieves the objectives of the rule and is consistent

with statutory requirements. Section 203 requires the EPA to establish

a plan for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

The EPA has determined that the approval action promulgated does

not include a Federal mandate that may result in estimated annual costs

of $100 million or more to either state, local, or tribal governments

in the aggregate, or to the private sector. This Federal action

approves preexisting requirements under state or local law, and imposes

no

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new requirements. Accordingly, no additional costs to state, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. The EPA will submit a report containing this rule and

other required information to the U.S. Senate, the U.S. House of

Representatives, and the U.S. Comptroller General prior to publication

of the rule in the Federal Register. This rule is not a ``major rule''

as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review

of this action must be filed in the United States Court of Appeals for

the appropriate circuit by February 8, 1999. Filing a petition for

reconsideration by the Administrator of this final rule does not affect

the finality of this rule for the purposes of judicial review, nor does

it extend the time within which a petition for judicial review may be

filed, and shall not postpone the effectiveness of such rule or action.

This action may not be challenged later in proceedings to enforce its

requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Ozone, Particulate matter, Reporting and recordkeeping

requirements, Volatile organic compounds.

Dated: November 24, 1998.

Dennis Grams,

P.E., Regional Administrator, Region VII.

Part 52, chapter I, title 40 of the Code of Federal Regulations is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart AA--Missouri

2. Section 52.1320 is amended by adding new paragraph (c)(111) to

read as follows:

52.1320 Identification of plan.

* * * * *

(c) * * *

(111) A revision submitted by the Governor's designee on July 30,

1998, that reduces air emissions from batch-type charcoal kilns

throughout the state of Missouri.

(i) Incorporation by reference:

(A) New Missouri rule 10 CSR 10-6.330, Restriction of Emissions

from Batch-Type Charcoal Kilns, effective July 30, 1998.

[FR Doc. 98-32419 Filed 12-7-98; 8:45 am]

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